In a narrow sense, a change of party is when one of the parties to a pending lawsuit leaves the lawsuit and is replaced by a third party. Along with this definition, the addition of new persons to one of the parties in the pending lawsuit may also be considered as a change of party. Since there was no regulation on voluntary changes of parties in the previous legal periods, there were no voluntary changes in practice. According to the opinion of the Court of Cassation, even amendment through amendment of pleading was not possible. However, with the Code of Civil Procedure No. 6100, the institution of voluntary change of parties was introduced. The most important benefit of the voluntary change of parties is that it provides procedural economy. As a rule, after the lawsuit is filed, it is not possible for the plaintiff to change the party indicated in the petition. In this case, one of the possible outcomes is the dismissal of the case due to the defendant’s lack of party status. In order to avoid the dismissal of the lawsuit, the plaintiff may waive the lawsuit, withdraw the lawsuit or not pursue the lawsuit, have the file removed from the process and then have the lawsuit deemed as not filed, and file a separate lawsuit by naming the right person as a party. However, these procedures both have unfavorable consequences for the plaintiff and negatively affect all proceedings in general, as they unnecessarily increase the workload of the courts. Therefore, in some cases, there is a legal benefit in terms of procedural economy in allowing the change of parties.
The voluntary change of parties eliminates the possibility of filing a new lawsuit with the same subject matter and cause of action and the possibility of a decision by a different judge, and prevents the prolongation of the duration of the proceedings by allowing the case to be conducted by the judge who has previously investigated the case. According to Article 124/1 of the CCP, one of the parties must accept the voluntary change of party. The first paragraph reads as follows: “A change of party in a lawsuit is only possible with the express consent of the other party.” It is as follows. A voluntary change of party is required in the event that a lawsuit is filed by a person who is not actually a party or a lawsuit is filed against a person who is not a party, since it is necessary to conduct the lawsuit by the person who is actually a party1. There is a decision of the 15th Civil Chamber of the Court of Cassation on the subject (15th HD., E. 2016/5718 K. 2017/590 T. 14.2.2017). The aforementioned decision states
“According to Article 124 of the CCP; a change of party in a lawsuit is only possible with the express consent of the other party (124/…). Special provisions in the laws on this subject are reserved (124/…). However, a request for a change of party arising from a material mistake or not contrary to the rule of good faith shall be accepted by the judge without seeking the consent of the other party (124/…). If the incorrect or incomplete representation of the party in the statement of claim is based on an acceptable mistake, the judge may accept the request for change of party without seeking the consent of the opposing party. In this case, the judge shall award the costs of the proceedings in favor of the person who has ceased to be a party to the lawsuit and did not cause the lawsuit to be filed against him/her (124/…).
When the justification for the paragraphs … and …., which were added to the draft bill during the discussion of the draft CCP in the Justice Commission, is examined, it is understood that the legislator has made a regulation by accepting the change of party due to mistake in representation within the scope of the article. Even regardless of the justification, it should be accepted that the voluntary change of parties, which the legislator states that it can be accepted in case of misrepresentation of the party, which is a more serious procedural error, can also be made in case of a mistake in representation, which involves a milder procedural error compared to the other. For this reason, Article 124 of the CCP may also be applied in case of misrepresentation of the party through mistake in representation.
When the concrete case is evaluated together with the above-mentioned explanation and the aforementioned rules; …. … Construction Regional Directorate, which is shown as the defendant in the lawsuit petition, does not have a legal entity, and the correct opponent is ….., to which the … Construction Regional Directorate is also affiliated …. …., to which the Regional Directorate of … Construction is affiliated, it is clear that there is a mistake in the representative. Attorney … came to the preliminary examination hearing where the decision was rendered despite the objection to the opposition, as the representative of the defendant, and it was not asked whether this attorney came to the hearing as the representative of …., and the plaintiff was not asked for an open statement from the plaintiff regarding the misrepresentation of the party. However, if there is a deficiency in the conditions of the lawsuit as a result of misrepresenting the wrong party by mistake in representation, this is a deficiency in the conditions of the lawsuit that can be completed by making use of Article 124 of the CCP. If it is possible to remedy the deficiency in the conditions of the lawsuit, the relevant party must be given a deadline in accordance with Article 115/…. of the CCP. Since it is not correct to decide to dismiss the case procedurally as written, without giving the plaintiff a deadline based on Article 115/…. of the CCP to complete the deficiency in the conditions of the lawsuit by making a voluntary party change by making use of Article 124 of the CCP, the decision should be reversed in favor of the appellant.”
According to the Code of Civil Procedure, a voluntary change of party may be made in two ways: with the consent of the other party or with the permission of the judge. Apart from this possibility stipulated in Article 124 of the Code of Civil Procedure, voluntary change of party through amendment of pleading is not possible. If the plaintiff wishes to change the defendant, only the explicit consent of the defendant of the pending lawsuit is sufficient; the consent of the new defendant is not important. In order to change the plaintiff’s side, the previous plaintiff must first request this. Because it is unacceptable for anyone to give up his/her claim against his/her will. In case of a request to change the plaintiff who appears as a party in the lawsuit petition, the consent of both the defendant of the current lawsuit and the new plaintiff must also be present. Article 124/3-4 of the CCP regulates the change of parties with the permission of the judge. The law regulates;
“(3) However, a request for a change of party that does not arise from a material mistake or is not contrary to the rule of good faith shall be accepted by the judge without seeking the consent of the other party.
(4) If the incorrect or incomplete representation of the party in the lawsuit petition is based on an acceptable mistake, the judge may accept the request for change of party without seeking the consent of the other party. In this case, the judge shall award the costs of the proceedings in favor of the person who has ceased to be a party to the lawsuit and did not cause the lawsuit to be filed against him.” It is as follows.
Although voluntary change of party is generally realized with the consent of the opposing party, seeking the consent of the opposing party in absolute terms will, in some cases, cause the prolongation of the proceedings and the filing of new lawsuits, thereby contradicting the principle of procedural economy. Foreseeing this situation, the legislator has granted the right of amendment with the permission of the judge in the presence of certain conditions. The legislator has categorized the reasons for amendment with the permission of the judge under 3 headings. These are the change of the party due to material mistake, the request for amendment that is not contrary to the rule of good faith, and the voluntary change of the party due to an acceptable mistake. Considering the practice of the Court of Cassation, filing a lawsuit against a deceased person and being mistaken in the capacity of a party despite adequate investigation and similar cases can be given as examples of voluntary change of parties that do not violate the rule of good faith.
If the incorrect or incomplete representation of the party in the statement of claim is based on an acceptable mistake, the judge may accept the change of party without seeking the consent of the other party. It should be noted that since the situations considered as an admissible mistake do not also constitute a violation of the rule of good faith, the conditions required by paragraphs 3 and 4 of Article 124 of the CCP are fulfilled at the same time. Within the scope of the cases of voluntary change of parties due to an admissible mistake, the cases such as mistake in the representative, filing a lawsuit against a non-legal entity, the mistake in the official registry and records causing the party to be misrepresented, the missing party and similar cases can be evaluated2. There is a decision of the 20th Civil Chamber of the Court of Cassation on the subject (20th HD., E. 2017/1874 K. 2017/2756 T. 3.4.2017). The aforementioned decision states
“In the petition, the plaintiff, by naming the defendant … as a defendant, requested the restoration of the immovable subject to the lawsuit, the eviction of the defendant tenant if it is not restored, and the prohibition of the actual interventions of the defendants, and the court decided to dismiss the case due to the lack of hostility, since the defendant … is not a tenant and therefore does not have a party capacity in the immovable subject to the lawsuit, and the judgment was appealed by the attorney for the plaintiffs.
Although hostility is related to public order and should be taken into consideration ex officio by the court during the proceedings, it was not deemed correct to decide to dismiss the lawsuit without the formation of the parties, while it should be accepted that the nomination of the company manager … as the adversary is a mistake in the representative in line with the provisions of Article 124 of the CCP and the plaintiff should be given time to be included in the lawsuit by serving the lawsuit petition to … Eğitim Hizmetleri Turizm Taşımacılık İç ve Dış Ticaret Limited Şirketi, considering the economy of the lawsuit.”
There are necessary conditions for a voluntary change of party. The first of these is that the voluntary change of party must be requested. Voluntary change is not a matter to be examined by the judge ex officio. The request for a change of party may be submitted in writing or orally. There is no procedure stipulated by law. It may be made with a written statement or it may be requested to be recorded in the hearing record during the hearing. According to the explicit provision of the law, the consent of the other party or the permission of the court is another condition for a voluntary change of party. Finally, it is necessary to make an evaluation in terms of the time when the voluntary change can be requested.
While regulating the voluntary change of parties, the legislator has not made any regulation on the duration. In this respect, it can be evaluated that the voluntary change of party can be made until the final decision is rendered by the court of first instance. Since the voluntary change of parties constitutes a withdrawal of the lawsuit for the plaintiff, and a new lawsuit for the new party to the lawsuit, it is necessary to make an evaluation by comparing the provisions of the CCP. According to Article 123 of the CCP, it is possible to withdraw the lawsuit until the judgment is finalized, while according to Article 357 of the CCP, a new lawsuit can only be filed before the court of first instance. Accordingly, it is possible until the final judgment is rendered on the case before the court of first instance. In the last sentence of Article 124 of the CCP, a regulation has been made in terms of trial expenses. “In this case, the judge shall award the costs of the proceedings in favor of the person who is removed as a party to the lawsuit and does not cause a lawsuit to be filed against him.” Pursuant to this provision, the court should award the costs of the proceedings in favor of the defendant who is removed as a party to the lawsuit. Since this person is not at fault in the misrepresentation of the existing defendant, and since he/she is forced to deal with the proceedings that he/she should not have to deal with3 , the judicial expenses incurred by him/her should be covered.
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